By A L I Chougule
Aug 29, 2017
The Supreme Court judgement quashing instant triple Talaq – Talaq-e-Bidat – is not only a big relief for Muslim women who suffer unilateral and irrevocable invalidation of marriage, but also a liberating step in their fight for justice against unjust and archaic practices. That the judgment is a result of petitions by Muslim women who have suffered gender injustice is heartening. Even more heartening is the fact that the five-judge bench majority verdict will embolden moderates among Muslims to put pressure on the ultra conservative elements in All India Muslim Personal Law Board (AIMPLB) and orthodox clerics to reform the Muslim Personal Law or face similar challenges and judicial interventions in future.
It is reassuring that dissenting voices against orthodoxy and unfair practices in the name of Shariah and personal laws are rising from within the community. That triple Talaq which is banned in most of the Islamic countries but was being liberally practiced by Muslim men in India, a democratic and secular country, is a matter of disgrace. If judicial intervention was needed to declare triple Talaq un-Quranic and unconstitutional is a matter embarrassment for the AIMPLB and clerics who think little for larger good and well being of the community that is paying a heavy price for its educational backwardness. It is surprising that the self-appointed leaders who claim to represent the Muslims in India are least bothered about the downward slide of the community on several social and economic indicators.
However, the comforting fact is that orthodoxy of the social and religious leadership of the community is being challenged by women and their progressive supporters, both within and outside the community, who seem determined to take their fight for gender justice forward. In a way the seeds of dissent and opposition to conformist beliefs and antiquated practices were sown more than 30 years ago when Shah Bano went to court; her case related to monthly maintenance from her ex-husband. Thought the Supreme Court ruled in her favour in 1985, the overturning of the verdict by an act of Parliament a year later had become a matter of national debate in political and social forums.
While the country was consumed by a fractious debate, the issue was exploited by political parties and right wing organisations as a case of Muslim appeasement. It is another matter that neither Shah Bano, nor the community gained anything from the so called ‘appeasement’. However, the reversal of SC judgement enhanced the ultra conservative leadership’s control over the community. The Muslim leadership – religious, political and social – lived in a false sense of victory, defending the Muslim Personal Law as the only acceptable means to resolve contentious issues relating to personal matters like marriage, divorce, inheritance, maintenance and adoption. Though Muslim women continued to suffer injustice of triple Talaq, the fight had begun at individual level and in the last 30 years women knocked on the doors of the courts with their individual cases, challenging the discriminatory practices within family and personal laws.
While the courts did adjudicate these individual and isolated cases and passed favourable judgements, no judgment tested the practice of triple Talaq on the basis of legal sanctity and fundamental right of equality and non-discrimination. It is for this reason that the Supreme Court judgement in the case of Shayara Bano and others becomes a significant game-changer as it will bring private discussions on women’s rights into mainstream public debate. The important aspect of the verdict is: it acknowledges that the practice of triple talaq is not validated by the Quran. Hence the focus of the debate will now revolve around whether it is possible to test all personal laws in the larger framework of the Constitution and gender equality in a secular democracy. And if there is a contradiction, should principles of equality prevail over personal laws?
As sanctity bestowed on the personal laws ensured unjust and archaic practices like the triple talaq escaped legal scrutiny, the five-judge bench that delivered the 3:2 majority judgement also did not arrive at a consensus as regards religious freedoms guaranteed by Article 25 and individual rights enshrined in Article 14. Since there was no agreement on the conflict between religious freedoms and individual rights, though marriage is a civil institution, the issue remains open to legal scrutiny, parliamentary debate as well as mainstream civilised discussion whether Article 14 should have precedence over Article 25.
In this context, reforms within the Muslim community, as Jutices Kehar and Abdul Nazeer stressed on, will play a crucial role in doing away with discriminatory practices against women. However, it is also true that reforms will be a frustratingly slow process. Since orthodoxy and patriarchal mindset rules in the community and the clerics emphasise more on religious learning over modern education, it is quite likely that women will be encouraged to seek arbitration and resolve disputes within the religious framework and discouraged to seek legal remedies. But the SC judgement has not only initiated a debate but brought in an awakening among women that if religious freedoms are guaranteed in the Constitution, unjust practices under personal laws can be challenged under individual rights of the Constitution. This is a welcome change against the earlier silence on issues of marriage and divorce and inequality within marriage and family.
God is kind; the holy book (Quran) treats man and woman equally. It also commands man to be fair to woman. But man is not only argumentative but prejudiced against woman. Minorities are often conservative and confrontational. They tend to protect their identity and hence see reforms as attempts to curb their religious freedom. Despite the laws, there is little gender equality in other communities like Hindus and Christians for instance, though their personal laws have gone through renditions to address some concerns in matters of inheritance and polygamy. However, that does not mean that gender inequality should not be addressed through law, though it will not change the ground reality significantly. Muslim personal law needs drastic changes to keep pace with modern times.
The larger issue is not only a suitable law but empowerment, gender equality and security in conjugal lives. Modern education will not only empower women but help them protect their rights. The self-appointed religious leaders will not give in to major changes in the personal laws easily as it will weaken their leadership and moral authority over the community. But the SC judgement has sent the clerics and conservative elements are on the back foot. The momentum and moral ground is clearly with women. The fight for gender justice should continue.